Senior Advocate Kirti Uppal Raises Concerns Over Arvind Kejriwal's Letter Seeking Transfer Of Excise Policy Case From Sitting Judge

Uppal has termed the move as an attempt to undermine the independence of the judiciary by publicly imputing bias to a sitting judge of the Court.

The AAP Supremo has sought transfer of the CBI's criminal petition challenging his discharge in the case. Kejriwal is one of the respondents in the matter.

In a letter written today, Uppal referred to media reports stating that Kejriw had written to the Chief Justice seeking transfer of the case from Justice Sharma on the ground of a “reasonable apprehension” regarding impartiality. Uppal has said that such allegations, based merely on oral observations during hearings, are deeply disturbing and had the tendency to erode public confidence in the institution.

“In my view of the matter, the act of publicly casting aspersions on the fairness and impartiality of a sitting Judge of this Hon'ble Court, without any legally sustainable basis, strikes at the very root of the administration of justice. Such conduct has the tendency to scandalise the Court and undermine public confidence in the institution of the judiciary,” the letter states.

It adds that litigants cannot be permitted to attribute motives to judicial observations made in the course of hearing, nor can they seek to publicly question the integrity or impartiality of a Judge merely because the proceedings do not appear to proceed in the manner desired by them.

If such public representations and letters are allowed to be circulated and entertained in the manner reported, it would set an extremely unhealthy precedent. It would encourage litigants to attempt forum shopping and to publicly malign the reputation of Judges of this Hon'ble Court by raising speculative allegations of bias, thereby eroding the institutional dignity of the judiciary, the letter submits.

Further, the former Bar President has said that public dissemination of allegations raised by Kejriwal appears to be “calculated to play to the galleries” and to “advance extraneous considerations” at the cost of the dignity of judicial institution.

“In these circumstances, I most respectfully request that you (as the head of the institution) may be pleased to take cognisance of the aforesaid conduct and consider initiating appropriate proceedings, including proceedings for criminal contempt, against such attempts by interested litigants to overreach the judicial process,” the letter states.

“The independence of the judiciary and the reputation of Judges of this Hon'ble Court, who discharge their duties with utmost integrity and impartiality, are the cornerstones of the rule of law. It is therefore imperative that any attempt to undermine these foundational principles be firmly addressed,” it adds.

The matter was listed before Justice Sharma on March 9, who had issued notice on the plea filed by Central Bureau of Investigation (CBI) challenging the discharge of Aam Aadmi Party supremo Arvind Kejriwal, Manish Sisodia and others in the corruption case related to the alleged liquor policy scam.

In doing so the high court had also said that the trial court observations made while discharging AAP leaders Arvind Kejriwal, Manish Sisodia and all other accused in the liquor policy case regarding statements of witnesses and the approvers, at charge stage, are “prima facie erroneous and need consideration.”

The AAP Chief has said that the March 9 order does not disclose reasons as to the "specific perversity" in the trial court observations. It further states that the concerned bench has already decided multiple matters arising from the excise policy case recording prima facie observations and had dismissed the petitions filed by the accused persons. It states that Supreme Court has granted relief to the accused persons. He states that his submission is not directed to any personal predilection but only to test of a reasonable apprehension in the mind of a fair minded and informed litigant. The AAP leader has sought transfer on the ground of a "grave, bona fide, and reasonable apprehension that the matter may not receive a hearing marked by impartiality and neutrality".

For context, the trial court had found that allegations against Kejriwal were based on statements of co-accused or witnesses, but there was no independent corroboration connecting him to any criminal conspiracy.

Moreover, it had observed that the CBI repeatedly re-record statements of the approver over an extended period, "ostensibly to fill gaps, improve the prosecution narrative, implicate additional accused, or artificially weave missing links in the chain of circumstances.”

Justice Swarana Kanta Sharma had said, "certain factual discrepancies pointed out in the impugned order, the observations made by the learned Trial Court regarding statements of the witnesses and the approvers, at the stage of charge itself, prima facie appear erroneous, and need consideration.

The judge had added that scathing remarks made against the CBI Investigating Officer that he abused his official position to conduct unfair investigation, are prima facie “foundationally misconceived especially when made at the stage of charge itself.”

In view of the above, the judge had stayed the observations made against the Investigating Officer, including the direction recommending departmental action against him.

In the meantime, the Court requested the Trial Court where the proceedings on money laundering are pending, to adjourn the case to a date, later than the date fixed before the High Court, and await the outcome of CBI's plea.

On February 27, the trial court discharged all the 23 accused persons in the case, including political leaders Kejriwal, Sisodia and K Kavitha.

All who have been discharged are Kuldeep Singh, Narender Singh, Vijay Nair, Abhishek Boinpally, Arun Pillai, Mootha Gautam, Sameer Mahendru, Manish Sisodia, Amandeep Singh Dhall, Arjun Pandey, Butchibabu Gorantla, Rajesh Joshi, Damodar Prasad Sharma, Prince Kumar, Arvind Kumar Singh, Chanpreet Singh, K Kavitha, Arvind Kejriwal, Durgesh Pathak, Amit Arora, Vinod Chauhan, Ashish Chand Mathur and Sarath Reddy.

The Trial Court, in strong words, had rapped the CBI for lapses in investigation and said that the “voluminous chargesheet” has many lacunae not supported by any witness or statement.

It said that the CBI failed to make out a prima facie case against Sisodia. The Special CBI Judge had added Kejriwal was implicated without any cogent material.

For context, Sisodia was in jail for approximately 530 days.

Arvind Kejriwal spent approximately 156 days in jail across two periods. He was finally released on September 13, 2024, after the Supreme Court granted him bail in the CBI case, having already received interim bail in the ED case.

The excise policy was framed by the Delhi Government to boost revenue and reform liquor trade in 2021, which was later withdrawn after allegations of irregularities in implementation were made and Lieutenant-Governor Vinay Kumar Saxena ordered a probe by the Central Bureau of Investigation into the policy.

This policy – which sought to completely privatise liquor trade in the national capital – was used to grant undue advantage to private entities at the cost of the public exchequer and smacked of corruption, the Enforcement Directorate and the Central Bureau of Investigation claimed.

Manish Sisodia was first arrested by the Central Bureau of Investigation in a case related to the excise policy on February 26, 2023 and later by the Enforcement Directorate on March 9, 2023. In the first information report (FIR) registered by the CBI, Sisodia and others have been accused of being instrumental in 'recommending' and 'taking decisions' regarding the 2021-22 excise policy, “without the approval of competent authority with an intention to extend undue favours to the licensee post tender”.

The central agency also claimed that the AAP leader was arrested because he gave evasive replies and refused to cooperate with the investigation, despite being confronted with evidence.

The AAP chief (Kejriwal) was formally arrested by CBI on June 26, 2024, while he was in custody of the Enforcement Directorate in the money laundering case arising out of the alleged liquor policy scam.